Saturday, December 13, 2014

I don't even pretend to understand the minutiae of PRIIA Section 207 but the case that was recently discussed may in its own way alter the future of passenger rail. The thing is that I'm not sure if I'm supposed to side with the USDOT the way NARP has given that its friend of the court brief was the only one that supports the DOT's effort to overturn the Court of Appeals ruling.The AIPRO filed its own friend of the court brief, asking the high court to uphold the appeals court ruling. The case could be made that keeping Section 207 of the 2008 law could actually be a bigger detriment to the future of passenger rail than striking it down.Some excerpts from the brief:ARGUMENTSECTION 207 OF THE PRIIA IMPERMISSIBLY CONFERSON AMTRAK REGULATORY AUTHORITY OVER ITS COMPETITORSIN THE PASSENGER-RAIL INDUSTRY.A. The Provision Of Passenger-Rail ServiceIs A Competitive Industry In WhichAmtrak Is But One Competitor. The first important move toward this new competitiveregime was Congress’s enactment of theAmtrak Reform and Accountability Act of 1997, Pub.L. No. 105–134, 111 Stat. 2570, which terminated Amtrak’s monopoly over intercity service.Section 217 authorizes States to select “anentity other than Amtrak to provide servicesrequired for the operation of an intercity passengertrain route * * *.” PRIIA § 217, 49U.S.C. § 24702 (note). Section 301(a) authorizes the Secretary ofTransportation to “make grants * * * to assistin financing the capital costs of facilities,infrastructure, and equipment necessary toprovide or improve intercity passenger railtransportation.” PRIIA § 301(a), 49 U.S.C.§ 24402(a)(1). A State that applies for a grantmust either “select[] the proposed operator ofits service competitively” or “provide writtenjustification to the Secretary showing whythe proposed operator is the best, taking intoaccount price and other factors, and that useof the proposed operator will not unnecessarilyincrease the cost of the project.” PRIIA§ 301(b), 49 U.S.C. § 24402(b)(3). Section 214 directs the Federal Railroad Administrationto establish an Alternate PassengerRail Service Pilot Program, underwhich “a rail carrier or rail carriers that owninfrastructure over which Amtrak operatesa[n] [intercity] passenger rail service route”may “petition the Administration to be consideredas a passenger rail service providerover that route in lieu of Amtrak * * *.” PRIIA§ 214(a), 49 U.S.C. § 24711(a)(1) (emphasisadded). Translation: The days of only one company operating trains are over because Congress said so--twice. The best way for passenger rail to progress is to let each route be open for bidding.B. Section 207 Unconstitutionally DelegatesTo Amtrak Regulatory Authority OverAmtrak’s Direct Competitors In The Passenger-RailIndustry. 1. Amtrak’s Section 207 standards expresslyapply to all intercity passenger trains, notjust to Amtrak’s trains. Adding to the unfairness is the fact that, althoughSection 207 directs Amtrak and the FRA toconsult with certain other stakeholders in developingthe performance standards, the statute does not affordeven this limited right to Amtrak’s competitorsin the provision of passenger-rail service before permittingAmtrak to impose regulations on them. SeePRIIA § 207(a), 49 U.S.C. § 24101 (note) (listingstakeholders with consultation rights). Thus, whenAmtrak and the FRA initially proposed the Section207 metrics and standards in March 2009 (see J.A.11), they solicited comments from the stakeholdergroups specifically identified in the statute (see J.A.75) but did not afford Amtrak’s competitors in thepassenger-rail industry any opportunity to comment—eventhough these competitor passenger railroadswould be directly subject to the new regulatorystandards. Translation: That the feds did not allow Amtrak's competitors to even comment on the metrics as laid out in PRIIA is disturbing. How was this any different than what the Senate attempted to do to private operators in 2012 (Hint: It's the same thing)?2. Amtrak’s Section 207 standards may triggerSTB investigations and enforcement actionsagainst Amtrak’s competitors.Section 213 of the PRIIA provides for investigationand enforcement actions by the STB any timethat “any intercity passenger train”—not solely thoseoperated by Amtrak—fails to achieve 80 percent ontimeperformance or fails to meet the Section 207service-quality standards for two consecutive quarters.PRIIA § 213(a), 49 U.S.C. § 24308(f)(1).Translation: The idea that other operators could be penalized by the STB for delays even if they were caused by Amtrak is akin to some of the battles that took place in Florida earlier this decade when SunRail was held up due to liability provisions Amtrak initially found objectionable.Final thoughts

The dueling briefs by NARP and the AIPRO could actually be a clash of the past vs the future since the former posits itself as an advocacy organization while the latter is a trade group for other passenger carriers in the same manner that Airlines for America is for the airline industry

The USDOT's attorney did its side no favors with the way he argued its case--even sympathetic justices were a bit perplexed

We will find out next June just what SCOTUS will do

Eventually, the new Congress will have to redraft the metrics in order to avoid a repeat in the future